COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68888 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MICHELLE BAKER : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-315667. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Daniel Schaiu, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Arthur A. Elkins, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Michelle Baker, defendant-appellant, appeals her conviction on two counts of felonious assault both of which contained a violence, peace officer and firearm specification. Defendant-appellant's sole assignment of error concerns the sufficiency of evidence. For the following reasons, this court affirms defendant-appellant's conviction. I. STATEMENT OF FACTS Michelle Baker, defendant-appellant, was indicted on two counts of felonious assault under R.C. 2903.11. Both counts contained violence, peace officer and firearm specifications. On January 18, 1995, a jury trial began. The state presented the testimony of Officers Jeffrey Ryan and David Kelly, both of whom were involved in the arrest of defendant-appellant. The officers testified that on September 25, 1994, they were dispatched to Montclair Avenue, Cleveland, Ohio, to investigate a hit-skip accident. Both officers interviewed several witnesses who described the accident and defendant-appellant who apparently walked away from the accident down the street with her dog. The officers found the abandoned automobile of defendant-appellant with six empty beer cans inside and defendant-appellant's checkbook which had her name and address. Both officers then drove to defendant-appellant's house which was three streets away. When the officers approached the house, they saw a large, german shepard barking and growling from the inside. After identifying themselves as police officers, -3- defendant-appellant came to the door. The officers testified that defendant-appellant matched all the suspects' descriptions. The officers asked if they could go inside to talk with her but she refused to secure the dog. Eventually, defendant-appellant took the dog into a bedroom and locked the door behind her. When defendant-appellant failed to return, Officer Ryan entered the home. He was then joined outside the bedroom door by his partner. The officers testified after they told defendant-appellant they intended to arrest her for the hit- skip accident, she told them "you want the dog, I'm sending the dog out on you." Defendant-appellant then opened the door and let the dog out. The officers were able to "herd" the dog into the enclosed front porch. The officers testified that when they returned to the bedroom, the door was again locked. Officer Ryan told defendant-appellant to step out of the bedroom. Defendant-appellant then told them "you are not the only ones with guns." Concerned with the safety for himself and his partner, Officer Ryan kicked open the door to find defendant-appellant pointing a loaded 12-gauge shotgun at them. Officer Ryan was able to grab the barrel of the gun and a struggle ensued. The officers were eventually able to take the gun away from defendant-appellant and arrest her. Defendant-appellant testified that after the officers knocked at her front door, she approached with her dog and was questioned about a hit-skip accident. Defendant-appellant then told the officers they had her consent to search the car, which she believed -4- was parked in her driveway. Defendant-appellant then testified she left the front door to make a phone call, consumed more alcohol and went into her bedroom with the intentions of going to sleep. After hearing noises in her house, defendant-appellant testified she became nervous and picked up her gun. When she opened the door, she saw two police officers standing in front of her. Defendant-appellant threw the gun on the bed and asked what they were doing in her house. Defendant-appellant testified that one of the officers knocked her to the bed and began punching her. Defense counsel also presented Kirsten Harbison who testified that on the night of September 25, 1994, she received a phone call from defendant-appellant. Ms. Harbison testified that defendant- appellant told her she had been arrested and asked her to check defendant-appellant's home and make sure it was secure. Ms. Harbison testified she went to defendant-appellant's home and found her bedroom in disarray with blood on the bed. On January 27, 1995, the jury found defendant-appellant guilty on both counts of felonious assault with specifications. Defendant-appellant was sentenced to eight to twenty-five years on each count to run concurrently. Defendant-appellant timely filed this appeal. II. ASSIGNMENT OF ERROR Michelle Baker, defendant-appellant, raises as her sole assignment of error: THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION OF FELONIOUS ASSAULT IN VIOLATION OF R.C. 2903.11(A)(2). -5- A. ISSUE RAISED: WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUSTAIN DEFENDANT-APPELLANT'S CONVICTION. Michelle Baker, defendant-appellant argues her conviction was not based upon sufficient evidence. Specifically, defendant- appellant argues the state failed to prove defendant-appellant knowingly intended and/or attempted to cause physical harm to the police officers. As such, defendant-appellant argues her conviction should be reversed. Defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW: SUFFICIENCY OF EVIDENCE. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley [(1978), 56 Ohio St.2d 169]. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. C. APPELLANT'S CONVICTION IS SUPPORTED BY SUFFICIENT EVIDENCE. Defendant-appellant was convicted of felonious assault under R.C. 2903.11 which reads in pertinent part: -6- (A) No person shall knowingly: *** (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordinance, as defined in section 2923.11 of the Revised Code. In the case sub judice, the sole issue presented here is whether the actions of defendant-appellant were sufficient to constitute a knowing attempt to cause physical harm. In State v. Green (1991), 58 Ohio St.3d 239, syllabus, the Ohio State Supreme Court held "[t]he act of pointing a deadly weapon at another coupled with a threat, which indicates an intention to use such weapon, is sufficient evidence to convict a defendant of the offense of "felonious assault" as defined by R.C. 2903.11(A)(2). See, also, State v. Brooks (1989), 44 Ohio St.3d 185. As previously stated, the testimony of both police officers established defendant-appellant locked herself in the bedroom with her german shepard. Defendant-appellant then stated "you want the dog, I'm sending the dog out on you." At that point defendant-appellant let the dog out of the bedroom. After the police secured the dog, defendant-appellant told the officers from behind the bedroom door "you are not the only ones with guns." After opening the door, the officers found defendant- appellant pointing a loaded shotgun directly at them. It was only after a struggle ensued before the officers were able to get the gun away from defendant-appellant. -7- We find these actions coupled with the statements made by defendant-appellant could be perceived by a reasonable person as an indication that defendant-appellant intended to use the shotgun. In keeping with the rule set forth in State v. Green, supra, we find there exists sufficient evidence to convict defendant-appellant of felonious assault as defined by R.C. 2903.11(A)(2). Moreover, the question of whether the evidence demonstrated defendant-appellant merely grabbed the gun for fear of somebody in her house and then quickly put the gun away once she discovered they were police officers were questions for the jury to decide. State v. DeHass (1967), 10 Ohio St.2d 230. Defendant-appellant's sole assignment of error is not well taken. Judgment affirmed. -8- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, P.J. and JOHN T. PATTON, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .